Understanding criminal seizure

Criminal seizure involves placing assets under judicial control by temporarily prohibiting their transfer, destruction, conversion, disposal or removal. It prevents the owner or holder of the seized asset from temporarily taking custody of or exercising control over it. Article 66(7) of the Code of Criminal Procedure (hereinafter "CCP") provides that "No person may validly dispose of property seized in the course of criminal proceedings."

Criminal seizure serves two purposes:

1. an evidentiary purpose relating to items useful for establishing the truth;
2. a patrimonial purpose aimed at ensuring the enforcement of any confiscations that may be ordered by the criminal court. This latter purpose forms part of the policy known as "Crime does not pay", which aims to deprive criminals of the proceeds of their crimes.

Criminal seizure may apply to any type of asset, whether tangible or intangible, movable or immovable, as well as documents or legal instruments in any form, including electronic or digital, evidencing ownership of an asset.

However, property may only be seized if it constitutes:

• an instrument that was used or intended to be used to commit an offence;
• the object of an offence;
• the proceeds of an offence;
• any financial gain derived from an offence.

Furthermore, the following may be seized:

• anything that appears useful for the establishment of the truth or the use of which would be likely to prejudice the proper conduct of the investigation;
• anything that is liable to confiscation or restitution.

This last category includes property:

• which has been substituted for the object, the proceeds or the financial benefit;
• whose monetary value corresponds to that of the object, the proceeds or the financial benefit, if these cannot be found for the purposes of confiscation;
• whose origin the convicted person or the owner, having been given the opportunity to explain themselves, has been unable to justify.

In cases of a flagrante delicto felony or misdemeanour, a judicial police officer may seize objects, documents, data stored, processed or transmitted within an automated data processing or transmission system, and any items that were used to commit the felony or misdemeanour or were intended for that purpose, that formed the subject matter of a felony or misdemeanour, as well as anything that appears to have been the proceeds of a felony or misdemeanour, and, in general, anything that appears useful for establishing the truth or the use of which would be likely to prejudice the proper conduct of the investigation, and anything that is liable to confiscation or restitution (see Article 31(3) of the Code of Criminal Procedure).

Outside of cases of flagrante delicto felony or misdemeanour, the judicial police officer may conduct a preliminary enquiry either on his own initiative or on the instructions of the State Prosecutor. During such an enquiry, the seizure of assets may only take place with the express consent of the person at whose premises the operation is carried out (see Article 47 of the Code of Criminal Procedure) or with the authorisation of the investigative judge (see Article 24-1 of the Code of Criminal Procedure).

Where an investigation (known as a "preparatory investigation" or "judicial investigation") is opened, the seizure of assets is ordered by the investigative judge (see Article 66 of the Code of Criminal Procedure) and carried out by a judicial police officer.

In the event of an investigation conducted by the European Public Prosecutor’s Office, the delegated European Public Prosecutor may request authorisation from the investigative judge to order searches and seizures (see Article 136-48(1)(1) of the Code of Criminal Procedure).

In the event of a seizure in a flagrante delicto felony or misdemeanour case or during the preliminary enquiry, the searches and seizures report shall be signed by the persons who appear to have been involved in the offence, by the persons at whose premises the searches and seizures took place, and by those who were present; if any person refuses to sign, this shall be noted in the report. They shall be provided with a copy of the report (see Article 33(6) of the Code of Criminal Procedure).

In the event of a seizure during the investigation, the searches and seizures report shall be signed by the accused[1], by the person at whose premises they were carried out, and by those who were present (see Article 66(5) of the Code of Criminal Procedure).

[1] The accused is a person who, after having been summoned and heard by the investigative judge during the initial hearing, is formally "charged" with the offences alleged against them and their legal classification (see Article 81 of the Code of Criminal Procedure).

There are various procedures through which assets are placed under judicial control.

Generally, judicial police officers and agents seize the objects and hand them over to the evidence department or, on the magistrate’s instructions, to the Asset Management Office (Bureau de gestion des avoirs, BGA). However, an object may be entrusted to a seizure custodian, for example, if it is too bulky to be moved.

Cash and credit balances are transferred to the Consignement Office. The consignement receipt is filed in the criminal case file.

Crypto-assets are transferred to a wallet managed by the BGA.

The seizure of dematerialised financial instruments is carried out through the third party from whom the assets are seized, which is generally a bank. In exceptional cases, for example, if the third party subject to seizure ceases trading, the positions may be transferred to a mirror account held by the BGA.

The seizure of shares in an unlisted company is effected by recording the inalienability of the seized shares in the company register.

The seizure of data stored, processed or transmitted in an automated data processing or transmission system is effected either by the seizure of the physical medium on which it is stored or by a copy of the data.

The seizure of real estate property is effected by the registration of the seizure order in the land register.

Although the asset is placed under judicial control, the State does not become its owner. The party subject to the seizure remains the owner of the seized asset, provided they are the rightful owner, until a court of first instance has ordered its confiscation.

In principle, no. Apart from Article 47 of the Code of Criminal Procedure, which allows the person at whose premises the operation is taking place to withhold consent, criminal seizure is a coercive measure, meaning that it may be carried out against the person’s will, with recourse to law enforcement if necessary.

An asset belonging to you has just been seized by the courts during a search of your home or the premises of a third party. You may apply to the judicial authorities if you wish to reclaim this item. There are two ways to reclaim seized property: a request for the release of the seizure and a request for the return of the property. However, there is no basis for the release of the seizure or returning seized property where doing so would hinder the establishment of the truth or the protection of the parties’ rights, or where it poses a danger to persons or property. It may also be refused if the confiscation of the asset is provided for by law (see Article 68(6) of the Code of Criminal Procedure).

Request for the release of the seizure

The release of the seizure is a provisional decision enabling a judicial authority to make an assets placed under judicial control available again. Where an enquiry (flagrante delicto felony case or preliminary enquiry) is ongoing, the request for the release of the seizure must be addressed to the State Prosecutor (see Article 33(8) of the Code of Criminal Procedure) . Where an investigation is ongoing, the request must be addressed to the investigative judge (see Article 67(1) of the Code of Criminal Procedure). In the case of an investigation conducted by the European Public Prosecutor’s Office, the request must be addressed to the delegated European Public Prosecutor (see Article 136-49(2) of the Code of Criminal Procedure).

If your request for the release of the seizure is refused or if the State Prosecutor, the delegated European Prosecutor or the investigative judge takes no further action on it, you may apply to the competent court for the return of the property (see below).

Request for provisional return

The return is a decision by which an independent court orders that the asset held in judicial custody be returned to the rightful owner (the party from whom it was seized, the rightful owner, the aggrieved party, or a third party whose claims are recognised as legitimate and justified). The order directing the return is a provisional decision which does not prejudge the merits of the case; in other words, it in no way prejudges a person’s guilt or innocence and, in theory, the trial judges may still order the confiscation of the asset that has been provisionally returned. The request may be made as long as there is no final judgment in the case.

The accused, the defendant, the civil party or any other person claiming a right to an item held in judicial custody may claim its return (see Article 68 of the Code of Criminal Procedure).

The request for return is addressed:

• to the Council Chamber of the District Court, if an investigation is either ongoing or has been concluded by a dismissal order against which no appeal has been lodged, or if, in the absence of an investigation, no court has been seized;
• to the Council Chamber of the Court of Appeal, if an appeal has been lodged against an order of referral or a dismissal order;
• to the correctional chamber of the District Court, if the matter has been referred to it either by an order of referral or by a direct summons;
• to the correctional chamber of the Court of Appeal, if an appeal has been lodged on the merits;
• to the criminal chamber of the District Court, if it is seized by an order of referral;
• to the criminal chamber of the Court of Appeal, if an appeal has been lodged on the merits.

During the hearing, the defendant, the civil party or the person liable in civil law, as well as any other person claiming a right to property seized by the court, may also claim its return (see Articles 194-1 to 194-5 of the Code of Criminal Procedure).

Members of the Grand Ducal Police who observe a breach of the Road Traffic Regulations are entitled to seize the vehicle, which may subsequently be confiscated.

The request for the return of the vehicle must be lodged with the clerk's office of:

• the Council Chamber of the District Court during the investigation;
• the police court, in the case of a minor offence;
• the correctional chamber of the District Court when it is seized by a referral order from the Council Chamber or by direct summons, or if an appeal has been lodged against a judgment of the police court;
• the criminal chamber of the District Court when it is seized by a referral order;
• the criminal chamber of the Court of Appeal, if an appeal has been lodged against a judgment of the criminal chamber of the District Court;
• the correctional chamber of the Court of Appeal, if an appeal has been lodged against a judgment of the correctional chamber of the District Court or if an appeal to the Court of Cassation has been lodged.

In principle, a seized asset is kept in its current state until a court of first instance has made a final ruling on its fate.

However, if the seized asset is perishable, the investigative judge may order its disposal or destruction. He or she may also order the destruction of property classified as dangerous or harmful by law or its implementing regulations, or whose possession is unlawful, or which has no value (see Article 580, paragraphs 1 to 3 of the Code of Criminal Procedure).

The order for disposal or destruction is notified to the judicial authorities, the accused, the defendant, the civil party, the person in whose possession the seizure was made, the owner of the asset and any third party whose rights in respect of the asset are directly affected. These persons may challenge the decision, within five days of its notification, by means of an application to be addressed to the chamber of the District Court (see Article 580(4) and (5) of the Code of Criminal Procedure).

Furthermore, the accused, the defendant, the civil party or any other person claiming a right to a seized asset may apply to the court for its disposal in the event of significant depreciation or if the costs of storage or maintenance are disproportionate to its value (see Article 581 of the Code of Criminal Procedure). No appeal is available against a decision to dispose of an asset made pursuant to Article 581 of the Code of Criminal Procedure.

The court hearing the case on its merits decides the fate of the seized asset. Seized assets may either be returned to the defendant or the civil claimant, or confiscated for the benefit of the State. The proceeds from the sale of confiscated property may also be awarded to the civil claimant.

Firstly, you will need to be patient and wait until the decision becomes final, i.e. until all avenues of appeal have been exhausted.

The time limit for appealing against a decision made by the investigative judge or the Council Chamber is five days. It runs against the State Prosecutor from the date of the decision and against the other parties from the date of its notification (see Article 187 of the Code of Criminal Procedure). If the decision concerns the merits of the case and is handed down by a trial court (police court, or the criminal or correctional chamber of the District Court), you must wait for the expiry of the 40-day appeal period, which runs from the date the judgment is pronounced if it is an adversarial decision (the defendant appeared in person or through a lawyer at the hearing) and from the date notification if it is deemed to have been given in the presence of both parties (the summons was served on the defendant, who did not appear or ceased to appear at the hearing after initially attending) or given in absentia (the defendant did not appear at the hearing either in person or through a lawyer) (see Article 203 of the Code of Criminal Procedure).

Generally, the authority responsible for executing the decision to release or return the property will contact you in writing to invite you to collect the property to be returned.

If the release from seizure was ordered by an investigative judge, you will be contacted directly by post by the clerk's office of the investigative judge’s office.

If the release from seizure was ordered by the Sate Prosecutor or if the return was ordered by the Council Chamberl, you will be contacted by post by the State Prosecutor’s Office.

If the return has been ordered by a final judgment of the District Court or by a ruling of the Court of Appeal, you will be contacted by post by the Confiscation Enforcement Office of the State Prosecutor’s Office.

Please note that ownership of any asset not claimed within six months of a formal notice is transferred to the State. You will therefore lose all rights to the property.

If the asset ordered to be returned to you by the court has been disposed of (sold) during the proceedings, the proceeds from the sale of the asset will be returned to you, together with interest for late payment.

The amended Law of 22 June 2022 on the management and recovery of seized or confiscated assets makes no provision for management fees. Some court rulings have treated destruction costs as legal costs and have ordered their payment in their final judgments.